As the Military Justice Act of 2015 works its way through Congress, a Legal Memorandum from the Heritage Foundation considers the proposed changes in the context of history, contemporary practice, and the press to modernize:
[Update: this event has been postponed due to weather issues. We will update the post and provide a link to the new flyer when it is available] On January 28, 2016, from 6:00 to 8:00 pm, there will be a panel discussion of DoD’s proposed military justice legislation resulting, in part, from the work of the Military Justice Review Group (MJRG). The panel is co-sponsored by the American Bar Association’s Standing Committee on Armed Forces Law, in cooperation with the ABA’s Standing Committee on Law and National Security, and the Judge Advocates Association. See details here.
I have not heard any postponement due to weather. [Update: Well that’s not true now.]
Location: Founders Room, Offices of Dentons US LLP, 1900 K Street, Washington DC, 20006
Moderator: The Honorable James Baker, former Chief Judge, U.S. Court of Appeals for the Armed Forces
- The Honorable Andrew Effron, former Director of the MJRG
- Col. William N. Pigott, Chair, DoD Joint Service Committee on Military Justice
- LtCol Julie Huygen, U.S. Air Force representative, Joint Service Committee on Military Justice
- COL Walt Hudson, U.S. Army representative, Joint Service Committee on Military Justice
- CAPT Warren A. Record, U.S. Navy representative, Joint Service Committee on Military Justice
There is no charge for this event, but the Committee asks that you please email Susan.Koz@americanbar.org to RSVP.
From the Code Committee, here:
This year’s meeting will be held at the Courthouse of the United States Court of Appeals for the Armed Forces, 450 E Street, NW, Washington, DC 20442-0001, at 10:00 a.m. on Tuesday, March 1, 2016. The agenda for this meeting will include consideration of proposed changes to the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, and other matters relating to the operation of the Uniform Code of Military Justice throughout the Armed Forces.
A brief interruption to our countdown: MJRG releases its legislative proposal to reform the Uniform Code of Military Justice
The Military Justice Review Group (MJRG) is an internal DoD working group created by the Secretary of Defense to conduct a comprehensive review of the UCMJ. I discussed the creation of the MJRG in this post. As an internal working group, the MJRG’s meetings and deliberations were closed to the public. However, the MJRG just released its first report, proposing major legislative changes to the UCMJ.
Additional materials are available on the MJRG’s website, here.
The National Defense Authorization Act for Fiscal Year 2016 (S.1356) was signed into law by the President last week.
The bill enacted last week contains 15 military justice provisions. They are identical to the provisions that were in the vetoed version of the bill. I discussed those provisions in this post.
That’s the word from this Poltico report:
IT’S VETO DAY AT THE WHITE HOUSE: The White House has taken any drama out of whether President Barack Obama will veto the National Defense Authorization Act, as he has vowed to do: It has announced in his daily schedule that he’ll veto the bill this afternoon.
The fiscal 2016 NDAA will be just the fifth veto of Obama’s seven-year presidency and will spark a Republican offensive against him for politicizing the military in a budget fight. The House has already set up a veto override vote for Nov. 5, although enough Democrats opposed the bill earlier this month to sustain the veto.
I discussed the military justice provisions in the FY16 NDAA in this post.
Update: Veto. Washington Post report here.
The National Defense Authorization Act for Fiscal Year 2016, with its 15 military justice provisions (discussed here), passed Congress this week.
However, according to numerous news reports (such as: this from Defense News, this from Politico, this from Roll Call, and this from the Washington Post), the President will veto the bill. According to these (and other) reports, the veto threat is limited to disagreement over fiscal and Guantanamo Bay provisions in the NDAA, and has nothing to do with the military justice provisions.
Back in June, in this post, I discussed the military justice provisions in the House and Senate versions of the National Defense Authorization Act for Fiscal Year 2016. The separate bills went to a conference committee. The Committee’s report was just published and is available here.
The text of the NDAA approved by the Committee contains numerous military justice provisions. I’ve excerpted them into a separate document available here. The provisions are:
Enforcement of certain crime victim rights by the Court of Criminal Appeals (sec. 531)
Department of Defense civilian employee access to Special Victims’Counsel (sec. 532)
Authority of Special Victims’ Counsel to provide legal consultation and assistance in connection with various government proceedings (sec. 533)
Timely notification to victims of sex-related offenses of the availability of assistance from Special Victims’ Counsel (sec. 534)
Additional improvements to Special Victims’ Counsel program (sec.535)
Enhancement of confidentiality of restricted reporting of sexual assault in the military (sec. 536)
Modification of deadline for establishment of Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (sec. 537)
Improved Department of Defense prevention and response to sexual assaults in which the victim is a male member of the Armed Forces (sec. 538)
Preventing retaliation against members of the Armed Forces who report or intervene on behalf of the victim of an alleged sexrelated offense (sec. 539)
Sexual assault prevention and response training for administrators and instructors of Senior Reserve Officers’ Training Corps (sec. 540)
Retention of case notes in investigations of sex-related offenses involving members of the Army, Navy, Air Force, or Marine Corps (sec. 541)
Comptroller General of the United States reports on prevention and response to sexual assault by the Army National Guard and the Army Reserve (sec. 542)
Improved implementation of changes to Uniform Code of Military Justice (sec. 543)
Modification of Rule 104 of the Rules for Courts-Martial to establish certain prohibitions concerning evaluations of Special Victims’Counsel (sec. 544)
Modification of Rule 304 of the Military Rules of Evidence relating to the corroboration of a confession or admission (sec. 545)
The bill is H.R.1735. You can follow it here.
Both the Senate and the House have passed versions of the National Defense Authorization Act for Fiscal Year 2016 that contain numerous military justice provisions. The Senate was last to act (passing its version on June 18), and the House has requested a conference to resolve the differences.
Notable sections include:
- Section 546 of the Senate version, changing the corroboration rule for confessions to require only corroboration of the trustworthiness of the confession rather than corroboration of the actual matters confessed. The corroboration rule (and its requirement for corroboration of facts rather than truthiness) was at issue this term in United States v. Adams, 74 M.J. 137 (C.A.A.F. Apr. 27, 2015) (CAAFlog case page).
- Section 557 of the House version, requiring establishment of a database to track all service members – current and former – who have been convicted of a sex offense at a court-martial, for the purpose of ensuring that they are properly registered as a sex offender.
- Section 549 of the Senate version, permitting an alleged victim to file an interlocutory appeal of certain issues, requiring a CCA to conduct a de novo review of those issues, and requiring the CCA to issue its decision within 72 hours of the filing of the petition.
- Section 551 of the Senate version, granting an alleged victim a right to Special Victims’ Counsel during questioning by military criminal investigators, but specifically stating that a violation of the right shall not be a basis to suppress any statement given by an alleged victim.
- Sections 546 and 1159 of the House version, which would require that a victim be allowed to participate in nonjudicial punishment and administrative separation proceedings.
- Section 548 of the House version, adding a mandatory minimum 2 year period of confinement to the mandatory minimum dishonorable discharge for certain sex offenses.
- Section 556 of the House version, requiring public access to court-martial documents at all stages of the proceedings.
- Various provisions in both bills expanding the scope of the role of Special Victims’ Counsel.
In a December 3, 2014 memo, here, SecDef required the service secretaries to provide the findings of the 2014 “Department of Defense Report to the President of the United States on Sexual Assault Prevention and Response” to servicemembers, stating:
To encourage greater victim reporting and demonstrate Department and Service progress, the Secretaries of the Military Departments will provide the findings in the [20 14 “Department of Defense Report to the President of the United States on Sexual Assault Prevention and Response”] to all Service members in an interactive manner. Please report your execution plan to the Under Secretary of Defense for Personnel and Readiness by January 30, 2015.
The Report is available here, under the Tab for “Report to the President.” The findings of the Report and the guidance are now being rolled out within DoN. Here is at least one of the presentations that will be making the rounds within DoN and a related guidance memo, here. Here are a few of MilJus highlights from the presentation:
• Commander Accountability – Leaders must cultivate or maintain command climates where improper discrimination of any kind, destructive behaviors and other inappropriate conduct is not tolerated and professionalism is the norm.
• Military Justice System Reforms – Reforms have also expanded legal representation and protections for victims’ interest, rights and privacy.
• Victims’ Legal Counsel – Provides victims a lawyer (not the prosecutor) to represent their specific interests.
The related memo emphasizes the Victim’s Legal Counsel program:
New, groundbreaking legal resource that provides advice and assistance to sexual assault victims in understanding and participating in the military justice system. VLCs, upon request of their clients, advocate on behalf of victims at pre‐trial motions hearings and Article 32 investigations, and are present at courts-martial to answer questions and prepare victims for their testimony.
Other services have similar training being released?
A Joint Base Lewis-McCord soldier testified in his court-martial yesterday that he killed a fellow soldier in self-defense in the nearby town of Lakewood. Private Jeremiah Hill testified that he stabbed Spc. Tevin Geike after Geike pulled out a knife and cut Hill when he tried to take it from him. Hill’s companions on the night of the murder also testified but distanced themselves from Hill’s actions. Hill faces life in prison without the possibility of parole if he is convicted of the murder. Full report from the Tacoma News Tribune here.
The FY 2016 NDAA markup continues the trend of military justice “fixes.” Here is the HASC Subcommittee on Military Personnel Markup containing a variety of provisions focused on dealing with issues related to sexual assault. The current markup includes sections addressing retaliation against victims and witnesses to sexual assault and improved response to sexual assault of male members of the armed forces. The markup schedule is here.
Congress revised Article 32 in the FY14 NDAA, eliminating the longstanding practice of a thorough pretrial investigation of charges prior to referral to a general court-martial, and replacing it with a more limited preliminary hearing. I analyzed the new statute shortly after it was enacted, in this post. The statute was slightly modified in the FY15 NDAA, making it effective for all hearings conducted on or after December 26, 2014 (discussed here).
Even though the new statute is in effect, the Manual for Courts-Martial has not been revised (though the JSC has proposed revisions, discussed here and here). In particular, R.C.M. 405 details the procedure for an Article 32 pretrial investigation, and it has not been modified to reflect the new statutory framework of a preliminary hearing. The Manual is promulgated under the President’s rulemaking authority contained in Article 36, and it is controlling for all of the services.
Nevertheless, two service secretaries have issued implementation guidance for Article 32 preliminary hearings. The Navy was first, with ALNAV 086/14 (“New Article 32, UCMJ, Preliminary Hearing Procedures”), issued on December 22, 2104. The Army recently followed suit, with Army Directive 2015-09 (“Implementation of Section 1702 of the National Defense Authorization Act for Fiscal Year 2014-Article 32, Uniform Code of Military Justice Preliminary Hearing”), issued on February 24, 2015. Update: A reader passed along the AFLOA/JAJM Article 32 Preliminary Hearing Officer’s Guide dated December 23, 2014, which contains similar guidance for the Air Force (though not from the Secretarial level).
These issuances generally conform to the new statutory language of Article 32, and they are in some ways inconsistent with the existing R.C.M. 405. For example, both of the issuances allow a Preliminary Hearing Officer to consider “other evidence, in addition to or in lieu of witness testimony. . . ” ¶ 3.(i)(3)(B), ALNAV 086/14; ¶ 10.c.(2), Encl. 1, ARMY DIR 2015-09. However, R.C.M. 405(g)(4) limits the ability to consider alternatives to testimony, and R.C.M. 405(g)(5) limits the ability to consider alternatives to evidence.
I think that the authority of a Service Secretary to issue substantive rules that are contrary to the Rules for Courts-Martial is dubious, and I note that “if an accused is deprived of a substantial pretrial right on timely objection, he is entitled to judicial enforcement of his right, without regard to whether such enforcement will benefit him at the trial.” United States v. Murray, 25 M.J. 445, 447 (C.M.A. 1988) (quoting United States v. Ragan, 33 C.M.R. 331, 336 (C.M.A. 1963) (quoting United States v. Mickel, 26 C.M.R. 104, 107 (C.M.A. 1958))). It will be interesting to see how the appellate courts address any objections to the ALNAV and the ARMY DIR.
The bill contains numerous provisions of interest to military justice practitioners (see Division A, Title V, Subtitle D). Here are the highlights:
- Section 531 makes numerous “technical revisions and clarifications” to last year’s changes to the UCMJ, including:
- Correcting technical language regarding a convening authority’s action on a “qualifying offense” (original text analyzed here);
- Correcting the definition of a victim in the new Article 60(d) (original text analyzed here);
- Adding language explicitly authorizing an accused’s waiver of an Article 32 preliminary inquiry (original text analyzed here);
- Expanding the prohibition on defense counsel interviews of an alleged victim of a sex offense to include any “counsel for the accused” and to involve notification to any counsel for the alleged victim (original text analyzed here);
- Adding the word “unlawful” into the new forcible sodomy/bestiality statute (Article 125) (original text analyzed here);
- Clarification of the definition of prospective members of the armed forces for purposes of inappropriate and prohibited relationships;
- Technical changes to the new Article 6b (original text analyzed here and here);
- Making the new Article 32 effective on December 26, regardless of the date of the alleged offense (original text analyzed here);
- Restoring a convening authority’s total discretion to act on the findings or sentence (except for offenses with a mandatory minimum) when a conviction involves offenses that occurred both before and after the effective date of the new Article 60(c) (original text analyzed here).
- Section 532 enacts a new Article 49, permitting depositions only “if the party [seeking the deposition] demonstrates that, due to exceptional circumstances, it is in the interest of justice that the testimony of the prospective witness be taken and preserved…” This is likely a reaction to the McDowell case (last discussed here).
- Section 535 enacts a new paragraph (e) in Article 6(b) that gives an alleged victim an explicit right to petition a CCA for a writ of mandamus to force compliance with M.R.E. 412 (the rape shield) and M.R.E. 513 (the psychotherapist-patient privilege). This is likely a reaction to the dissenting opinions in LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013) (CAAFlog case page).
- Section 536 limits the admissibility of good military character evidence, as follows:
SEC. 536. MODIFICATION OF MILITARY RULES OF EVIDENCE RELATING TO ADMISSIBILITY OF GENERAL MILITARY CHARACTER TOWARD PROBABILITY OF INNOCENCE.
(a) Modification Required- Not later than 180 days after the date of the enactment of this Act, Rule 404(a) of the Military Rules of Evidence shall be amended to provide that the general military character of an accused is not admissible for the purpose of showing the probability of innocence of the accused for an offense specified in subsection (b).
(b) Covered Offenses- Subsection (a) applies to the following offenses under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice):
(1) An offense under sections 920 through 923a of such title (articles 120 through 123a).
(2) An offense under sections 925 through 927 of such title (articles 125 through 127).
(3) An offense under sections 929 through 932 of such title (articles 129 through 132).
(4) Any other offense under such chapter (the Uniform Code of Military Justice) in which evidence of the general military character of the accused is not relevant to an element of an offense for which the accused has been charged.
(5) An attempt to commit an offense or a conspiracy to commit an offense specified in a preceding paragraph as punishable under section 880 or 881 of such title (article 80 or 81).
I’ve written about this before and I will write about it again in the coming weeks.
- Section 537 requires modification to M.R.E. 513 to eliminate the “constitutionally required” exception to the privilege (paragraph (d)(8)) and to increase the burden on a party seeking production or admission of privileged matters.
- Section 541 gives the “chief prosecutor” of each Armed Force the power to force secretarial review of a convening authority’s decision to not refer a charged sex-related offense to trial.
Congress created Article 6b in the National Defense Authorization Act for Fiscal Year 2014. My ongoing analysis of the military justice provisions in that legislation is available at this link.
Article 6b is a military version of the federal Crime Victims’ Rights Act (18 U.S.C. § 3771) (the CVRA), and many people (including myself) call it the Military Crime Victims’ Rights Act (the MCVRA) (I think the Joint Service Committee coined the term).
Article 6b(b) provides the following definition:
(b) Victim of an Offense Under This Chapter Defined- In this section, the term ‘victim of an offense under this chapter’ means a person who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense under this chapter (the Uniform Code of Military Justice).
The problem with the definition is that it doesn’t provide a clear point in time when the protections of Article 6b apply (i.e., at the time of commission of the alleged offense? At the time the report is made? Once a formal investigation begins? After charges are preferred? Etc., etc…).
The analogous CVRA may be a source of some guidance, except that it is also somewhat unclear. In this post at The Volokh Conspiracy, Paul Cassell discusses a paper he co-authored (available here) that argues that the CVRA applies before charges are filed, while the Justice Department took the position (in this memo) that the CVRA generally applies only after charges are filed.
Notably, the special victims counsel (SVC) component of the military’s legal assistance program (established in 10 U.S.C. § 1044e) states that SVC services (for sex-related offense victims) begins:
[U]pon report of an alleged sex-related offense or at the time the victim seeks assistance from a Sexual Assault Response Coordinator, a Sexual Assault Victim Advocate, a military criminal investigator, a victim/witness liaison, a trial counsel, a healthcare provider, or any other personnel designated by the Secretary concerned for purposes of this subsection.
10 U.S.C. § 1044e(f)(1).
The National Defense Authorization Act (NDAA) for Fiscal Year 2014 (FY14) made numerous changes to the UCMJ (analysis available here). Among those changes was section 1702(b) of the NDAA, revising Article 60(c) to limit a convening authority’s ability to modify either the findings or the sentence of a court-martial. This section was the focus of my analysis published earlier this month by LexisNexis (available at 2014 Emerging Issues 7217).
The revised Article 60(c)(2)(B) states that “except as provided in paragraph (4), the convening authority or another person authorized to act under this section may approve, disapprove, commute, or suspend the sentence of the court-martial in whole or in part.” This allows a convening authority to modify the adjudged sentence, with certain limits. The limits are provided in Article 60(c)(4)(A), which states:
Except as provided in subparagraph (B) or (C), the convening authority or another person authorized to act under this section may not disapprove, commute, or suspend in whole or in part an adjudged sentence of confinement for more than six months or a sentence of dismissal, dishonorable discharge, or bad conduct discharge.
My Emerging Issues Analysis discusses why this language limits a convening authority’s power for only the adjudged punishments of (1) confinement for more than six months and (2) a punitive discharge, leaving a convening authority free to modify any other adjudged punishment in any case. So, for example, when an accused is sentenced to confinement for one year and a $5,000 fine, the statute permits suspension of the fine (because it is not “an adjudged sentence of confinement for more than six months or a sentence of [punitive discharge]” ).
But the Secretary of the Navy recently took the opposite position in ALNAV 051/14, promulgating guidance that I believe is both erroneous and unlawful.